Thinly veiled

I was forever separating students when I was a teacher. It was particularly necessary with high school girls, whose capacity to talk perpetually might one day offer a solution to the world’s sustainable energy problems.

Separation is a curiously ineffective thing. When I separated students, it did not affect their friendships, the subject of their conversation, nor, in most cases, the amount of attention they were giving me. They were just a bit further apart.

According to the Concise Oxford, the adjective ‘separate’ means not much more than ‘physically disconnected’. I suppose that is right. When you separate things, or people, or ideas, about the only thing you can control is their physical location, and even that only temporarily. Things that are related will remain so, wherever you might try to move them.

So how do you separate church and state, intimately connected in a variety of ways, and lacking physical manifestations that can be neatly assigned to different sides of a room?

France has recently tackled the problem with typical Gallic pugnacity, planning to outlaw in state schools the wearing of headscarves by Muslim women, skullcaps by Jewish men, and large Christian crosses. (Thanks to popular culture and Madonna in particular, apparently the image of the Son of God hanging on a tree for the salvation of the world is no longer religious, provided the image is small enough).

Perceived by many to be principally an anti-Muslim measure, the proposal has been recommended by President Chirac, and readily embraced by the centre-right Government and a frightening proportion
of the still mostly (if only nominally) Catholic French population.

It is a curious development in the land of liberty, equality and fraternity. This is the country that in 1789 embraced the idea that ‘No one shall be disquieted on account of his opinions, including his religious
views, provided their manifestation does not disturb the public order established by law.’ Yet, the Government is justifying its plans by reference to the values of the revolution and the need to uphold the country’s secular identity.

In an unusual twist, the French share with the United States the same slightly bizarre thinking of that great architect of civil society, Thomas Jefferson. Although the French Declaration of the Rights of Man and of the Citizen was drafted by the Marquis de La Fayette, apparently he had more than a little assistance from Jefferson, who was then the US Ambassador to France.

Jefferson’s enduring hex on church–state relations in western democracies came in 1802, in his Reply to the Danbury Baptist Association. The First Amendment to the US Constitution protects, amongst other things, the right to free exercise of religion, and it prohibits the erection of a state church. Referring to that clause, Jefferson wrote to the good folk of Danbury:

‘Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion or prohibiting the free exercise thereof”, thus building a wall of separation between church and state.’

In 1987 US Chief Justice Rehnquist called Jefferson’s ‘wall of separation’ a ‘misleading metaphor’ which had freighted American constitutional history for nearly forty years.

The problem is obvious. Church and state cannot be separated by a wall. They cannot be moved to different parts of civil society, nor to different parts of an individual believer’s life, any more than they can be moved to different sides of a room. Jefferson separated actions and opinions with ease. I dare say Muslim believers may not find it so simple, and perhaps neither ought the rest of us.

In the United States the early citizens sought to shape a society different from the one they had known in England, where religion had for centuries been the basis of discrimination and persecution. The intensely religious men and women who sought and wrote the First Amendment did not want a society where religion had to be walled in; they wanted a political economy in which one’s religion would be irrelevant. Don’t blame the text for the fundamentalist theocracy that the US has now become; that is largely the fault of the courts and opportunistic politicians.

The French have failed to heed the American experience, or at least do not seem to care. In a knee-jerk of anti-terrorist fervour, the French Government seems to want religion to be totally private, walled in. For the French, separation of church and state seems to mean that as you go about your daily life you should not be able to identify what another person’s religion is, any more than you could identify what their political persuasion might be.

It is an attempt to protect the secular foundations of French society, but it is misguided. It makes church and state anything but separate. It is the state reaching into the minutiae of the daily life of its citizens, telling them what they may or may not wear. This, you might recall, was one of the oft-cited crimes of the Taliban.

For believers, this debate is about much more than apparel. For many Muslims and Jews and even for some cross-wearing Christians, these are not just customs of dress; they are the ordering of one’s life. What you wear is how you pray. As one protest banner cried, ‘France, you are my country; Veil, you are my life.’

If Chirac wanted to animate religious politics in France, he could scarcely have devised a better means than this. In eliminating visible religious divisions, the Government will inevitably crystallise and energise invisible ones. How you pray will become part of how you vote; it might also now have a bit more to do with whom you hate.

What then for Australia? Section 116 of our Constitution was drafted with the American First Amendment in mind, and is similar in its wording. It was not given its first thorough treatment by the High Court until the Federal Government sought to silence pacifist Jehovah’s Witnesses during World War II. At that time, Chief Justice Latham correctly stated that section 116 is ‘based upon the principle that religion should, for political purposes, be regarded as irrelevant’.

And so, by and large, it has been. In Australia, politics has remained mostly and happily free of religion. The 1955 Labor split is the obvious exception, which continues to serve as a reminder of just how ugly religious politics can be. In Australian politics, religious interests have to line up with all the others. Most people could not tell you what if any religion their local members, or even their national leaders,
follow. This is not such a bad thing. Fortunately, it is very different from what America has long been and what France may yet become. The result of decades of American effort to erect a wall of separation
between church and state is, ironically, a public life saturated with religion. In the United States and now in France, religion is political. It does not get less separate than that.

Perhaps the key to all of this lies in another statement of Chief Justice Latham. Section 116, he said, ‘assumes that citizens of all religions can be good citizens, and that accordingly there is no justification in the interests of the community for prohibiting the free exercise of any religion’. Good advice for our times.

Joshua Puls is a lawyer and psychologist and is Chaplain of Newman College in the University of Melbourne.

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